The Advocate

Informing Marine Engineers about legal matters

Authored by: Darren Williams, Williams & Company

“Get Off My Boat” – Vessel Searches and a Mariners Right to
Privacy

A reader recently asked me to describe her right to deny an
enforcement officer access to her vessel. The request highlights a
common misconception that a mariner has the right to stop an
enforcement officer from boarding their vessel without a search
warrant.

There are numerous laws, both federal and provincial, that provide
enforcement officers with authority to board and inspect vessels
without a warrant. Most notably are the provincial liquor control
laws, and the federal Criminal Code, Fisheries Act, Environmental
Protection Act, and the recently passed amendments to the Migratory
Birds Convention Act that prohibit “deposits” of oily bilge water.

Each of the laws allow a designated enforcement officer to board a
vessel in order to ensure compliance with the legislation, and each
contain a provision that makes denying such access an offence in
itself. In other words, while you may avoid being charged with an
offence by physically preventing a search of your vessel, you may be
committing an equally punishable offence by preventing the search.

Take for example the scenario of a towboat operator carrying onboard
an unregistered firearm without a permit. A Department of Fisheries
patrol boat spots the towboat in the area of a recent oil spill, and
stops the vessel to inspect it for compliance with oil pollution
regulations. The master, nervous the enforcement officers may find
his firearm if boarded, tells the officers they are not welcome
aboard.

While the punishment for depositing any bilge water is now
$300,000 (under the new Migratory Birds Convention Act), the
punishment for denying access to the vessel for purposes of
confirming compliance with the Act is also $300,000. This being
said, it is always best to allow the enforcement officer access, and
deal with whether what they find can be used against you after the
fact.

Since its introduction into the Canadian Constitution in 1982, the
Charter of Right and Freedoms has spawned a great deal of cases law
regarding an individual’s right to privacy. Section 8 of the Charter
provides that “everyone has the right to be secure from unreasonable
search and seizure”. Any state conduct which interferes with a
reasonably held expectation of privacy will constitute a “search”
and “seizure” for constitutional purposes. Section 24 of the Charter
allows the court to ‘throw out’ evidence that would bring the
administration of justice into disrepute – including evidence
collected during an unreasonable search. “Reasonableness” of the
search is therefore the test for whether evidence gathered can be
used against the accused.

The standard of what is a “reasonable” search varies with the type
of offence. Many of the cases that have contributed to the
misconception that a warrantless search is illegal, relate to
criminal offences. The standard of what is a reasonable search is
higher for a criminal offence that for regulatory offences such
those found under the Fisheries Act or the Migratory Birds
Convention Act. Going back to the example of the towboat operator
above, while it is reasonable for Fisheries Officers to board the
towboat to inspect the engine spaces and logbooks for a possible
evidence of an oil pollution offence, it is not reasonable for them
to search areas unrelated to the subject of their visit, such as the
master’s clothes locker where his firearm is stored. If, however,
RCMP board the vessel to ensure compliance with the Firearms Act
after someone reported that the master was seen on the deck with the
firearm, it is likely reasonable for the RCMP to search the locker
space.

The “plain view doctrine” should be understood. This is the notion
that while an officer may not make a search that is unrelated to
purpose for him being on the vessel, if the officer discoveries
anything in plain view (left out in the open) that relates to a
different offence, even though unconnected to the reason they are on
the vessel, this evidence can be used against the mariner. To this
end, it is recommended that you not tempt fate by leaving out what
should not be seen. It is also recommended that, when boarded, the
mariner ask the officer to state the specific purpose of their
search (compliance with what law). The Court will use this stated
purposes in determining whether the search was reasonably conducted.

Even if a search is unreasonable, however, a mariner may waive his
right to later claim it was unreasonable by consenting to the
search. For example, while inspecting for compliance with oil
pollution regulations the enforcement officers ask the master for
his permission to search his stateroom. Granted permission, evidence
of unrelated offences uncovered by the officer may be admissible in
court against the master because he granted permission for the
search. Consequently, while it is not advisable to refuse or
physically prevent a search, it is advisable to be clear with the
enforcement officer that they do not have your consent. The
statement, “you do not have my consent for this search” will
suffice.

In closing, it is not prudent for a mariner to deny an enforcement
officer the ability to board a vessel. Whether what the officer
finds on board vessel can be used to convict the mariner will depend
on the reasonableness of the search, which in turn will depend on
what purpose the search is conducted for. Do not deny access to your
vessel, ask the officer the purpose of their visit, make clear when
you do not consent to the search, and do not leave things out in the
open.

Darren Williams is a Barrister and Solicitor (Lawyer) specializing in Admiralty
Law, which has jurisdiction over maritime matters. Darren has worked
extensively on the water as well as in the courtroom. He is a
Barrister & Solicitor based out of Victoria, British Columbia,
Canada, practicing at the Law Firm of "Williams & Company".

On this webpage, he brings us timely and relevant articles on
the legal aspects of being a Marine Engineer in today's world.
Although the articles have a predominately Canadian flavour, we are
sure you will find his legal point of view enlightening where ever
you ship sails. Darren has also published other legal articles on
general admiralty law, view them all at the
Williams & Company website. You can reach Darren for question or
comment by phone at 250-478-9928 or
by email.